Tuesday, March 26, 2013
As I mentioned a while back, Democrats for Life and former Congressman Bart Stupak are filing amicus briefs in various lawsuits against the HHS mandate. The briefs, on which I am working, argue that the nation's distinctively strong tradition of protecting conscientious objections to facilitating abortions should extend to the objections to mandated insurance coverage of Ella and Plan B. The latest brief (here) is in Conestoga Wood Specialities v. Sebelius (Third Circuit), a case brought by devout Mennonites who run a business and object to abortion though not to contraception in general. The brief argues that the district court's denial of a preliminary injunction is
irreconcilable with our tradition of protecting health-care-related conscience in the commercial sphere—in particular the strong tradition, under federal and state laws, of protecting objections to abortion. Protections for objections to facilitating abortion have extended to multiple categories of for-profit entities and individuals engaged in commerce, and to many kinds of indirect facilitation, including mandatory coverage of abortion in insurance plans. When impositions are repeatedly prohibited under various conscience provisions, they cannot be dismissed as “insubstantial” burdens under RFRA.